Citation Nr: 0930605
Decision Date: 08/14/09 Archive Date: 08/19/09
DOCKET NO. 03-36 933 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a right shoulder
disability, including arthritis and arthralgia.
2. Whether new and material evidence has been received to
reopen a claim for service connection for a low back
disability, to include arthritis.
3. Whether new and material evidence has been received to
reopen a claim for service connection for chalazion of the
left eyelid, formerly claimed as an eye condition.
4. Whether new and material evidence has been received to
reopen a claim for service connection for conjunctivitis,
formerly claimed as an eye condition.
5. Whether new and material evidence has been received to
reopen a claim for service connection for a kidney disorder.
6. Entitlement to service connection for a left knee
disability, to include arthritis.
7. Entitlement to service connection for a right ankle
disability, to include arthritis.
8. Entitlement to service connection for a left ankle
disability, to include arthritis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
Please note this appeal has been advanced on the docket of
the Board of Veterans' Appeals (Board) pursuant to 38 C.F.R.
§ 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served on active duty from September 1952 to June
1957.
In October 2006, the Board denied service connection for
bilateral pes planus and remanded the issues current on
appeal to the Department of Veterans Affairs (VA) Regional
Office in St. Petersburg, Florida (RO) for additional
development.
Although the Board remand characterized the issues of service
connection for disabilities of the left knee, right ankle,
and left ankle as issues involving whether new and material
evidence had been received to reopen the claims, the Board
notes that because these issues do not involve prior final
adjudications, they are correctly characterized as noted on
the title page.
FINDINGS OF FACT
1. The original claim of service connection for an eye
condition was denied by an unappealed rating decision in June
1959; this denial was confirmed by unappealed rating decision
in November 1966.
2. The evidence received subsequent to the November 1966
rating decision does not by itself or in connection with the
evidence previously assembled raise a reasonable possibility
of substantiating the claim.
3. The original claims of service connection for right
shoulder disability and a kidney disability were denied by an
unappealed rating decision in February 1960.
4. The evidence received subsequent to the February 1960
rating decision does not by itself or in connection with the
evidence previously assembled raise a reasonable possibility
of substantiating any of the claims.
5. The original claim of service connection for low back
disability was denied by an unappealed rating decision in
November 1966; this issue of whether new and material
evidence had been submitted to reopen a claim for service
connection for low back disability was denied by the Board in
March 1992.
6. The evidence received subsequent to the March 1992 Board
decision does not by itself or in connection with the
evidence previously assembled raise a reasonable possibility
of substantiating the claim.
7. A left knee disability, including arthritis, was not
shown in service or for many years after discharge and is not
due to an event or incident of his active service.
8. A right ankle disability, including arthritis, was not
shown in service or for many years after discharge and is not
due to an event or incident of his active service.
9. A left ankle disability, including arthritis, was not
shown in service or for many years after discharge and is not
due to an event or incident of his active service.
CONCLUSIONS OF LAW
1. The November 1966 rating decision which denied
entitlement to service connection for an eye disorder is
final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §
20.1103 (2008).
2. New and material evidence has not been received to reopen
the claim of service connection for an eye disorder.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156,
20.1103 (2008).
3. The February 1960 rating decision which denied
entitlement to service connection for right shoulder
disability and a kidney disability is final. 38 U.S.C.A. §
7105(c) (West 2002); 38 C.F.R. § 20.1103 (2008).
4. New and material evidence has not been received to reopen
the claims of service connection for a right shoulder
disability, a leg disability, and a kidney disability.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156,
20.1103 (2008).
5. The March 1992 Board decision which did not find any new
and material evidence to reopen a claim for entitlement to
service connection for a low back is final. 38 U.S.C.A. §
7104 (West 2002); 38 C.F.R. § 20.1100 (2008).
6. New and material evidence has not been received to reopen
the claim of service connection for a low back disorder.
38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156,
20.1100 (2008).
7. Disability of the left knee was not incurred in or
aggravated by active duty, nor may arthritis be presumed to
have been incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110,
1112, 1113, 1131, 1137, 5103A, 5107, 7104 (West 2002);
38 C.F.R. §§ 3.1, 3.303, 3.307, 3.309 (2008).
8. Right ankle disability was not incurred in or aggravated
by active duty, nor may arthritis be presumed to have been
incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112,
1113, 1131, 1137, 5103A, 5107, 7104 (West 2002); 38 C.F.R.
§§ 3.1, 3.303, 3.307, 3.309 (2008).
9. Left ankle disability was not incurred in or aggravated
by active duty, nor may arthritis be presumed to have been
incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112,
1113, 1137, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.1,
3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Board has considered the Veterans Claims Assistance Act
of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations
implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2008).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002).
After having carefully reviewed the record on appeal, the
Board has concluded that the notice requirements of VCAA have
been satisfied with respect to the issues decided herein.
With respect to the matter of the submission of new and
material evidence, although VA's duty to assist is
circumscribed, the notice provisions of VCAA are applicable.
The United States Court of Appeals for Veterans Claims
(Court) held that 38 U.S.C.A. § 5103(a), as amended by the
VCAA, and 38 C.F.R. § 3.159(b), as amended, which pertain
to VA's duty to notify a claimant who had submitted a
complete or substantially complete application, apply to
those claimants who seek to reopen a claim by submitting
new and material evidence pursuant to 38 U.S.C.A. § 5108.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The notice and assistance provisions of VCAA should be
provided to a claimant prior to any adjudication of the
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Adequate notice to the veteran was not sent in this case
until later in the claims process. However, VA may proceed
with adjudication of a claim if errors in the timing or
content of the notice are, as in this case, not prejudicial
to the claimant. Dunlap v. Nicholson, 21 Vet. App. 112
(2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see
also Pelegrini, 18 Vet. App. at 121.
The RO sent the Veteran a letter in January 2002 that
informed him of the requirements needed to establish
entitlement to service connection. In accordance with the
requirements of VCAA, the letters informed the Veteran what
evidence and information he was responsible for obtaining and
the evidence that was considered VA's responsibility to
obtain. Additional VA and private medical records were
subsequently added to the claims files.
With respect to a claim of whether new and material evidence
has been presented to reopen the claim for service
connection, in Kent. v. Nicholson, 20 Vet. App. 1 (2006), the
Court established significant requirements with respect to
the content of the duty to assist notice under the VCAA which
must be provided to a veteran who is petitioning to reopen a
claim.
The Court held that VA must notify a veteran of the evidence
and information that is necessary to reopen the claim and VA
must notify the veteran of the evidence and information that
is necessary to establish entitlement to the underlying claim
for the benefit sought. The Court also held that VA's
obligation to provide a veteran with notice of what
constitutes new and material evidence to reopen a service
connection claim may be affected by the evidence that was of
record at the time that the prior claim was finally denied.
The question of what constitutes material evidence to reopen
a claim for service connection depends on the basis on which
the prior claim was denied. In order to satisfy the
legislative intent underlying the VCAA notice requirement to
provide claimants with a meaningful opportunity to
participate in the adjudication of their claims, the VCAA
requires, in the context of a claim to reopen, VA to examine
the bases for the denial in the prior decision and to respond
with a notice letter that describes what evidence would be
necessary to substantiate the element or elements required to
establish service connection that were found insufficient in
the previous denial.
In this case, a VCAA notification letter provided to the
Veteran in February 2008, as a result of the Board remand,
complies with the holding in Kent. The Veteran was informed
in a March 2007 letter that an appropriate disability rating
and effective date would be assigned if his claim was
granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. However, with respect to the
claim to reopen, VA's duty to assist the Veteran in the
development of his claim is not triggered unless and until a
claim is reopened. See 38 U.S.C.A. § 5103A. Paralyzed
Veterans of America v. Secretary of Veterans Affairs, 345
F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a
medical examination or medical opinion until a claim is
reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (Holding
that unless new and material evidence has been submitted, the
duty to assist does not attach); see also Woehlaert v.
Nicholson, 21 Vet.App. 456 (2007) (Holding that adequacy of
VA medical examination mooted upon Board's determination that
claimant not entitled to reopening of claim, and conduct of
VA medical examination, when claimant had not presented new
and material evidence.) However, VA nexus opinions were
obtained in April 2009.
The Veteran has been given ample opportunity to present
evidence and argument in support of his claims. The Board
additionally finds that general due process considerations
have been complied with by VA, and the Veteran has had a
meaningful opportunity to participate in the development of
the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006);
38 C.F.R. § 3.103 (2007).
Analyses of the Claims
The Board is required to apply the relevant law, including
statutes published in Title 38, United States Code ("38
U.S.C.A "); regulations as published in the Title 38 of the
Code of Federal Regulations ("38 C.F.R.") and the
precedential rulings of the Court of Appeals for the Federal
Circuit (as noted by citations to "Fed. Cir.) and the Court
of Appeals for Veterans Claims (as noted by citations to
"Vet. App.").
The Board is bound by statute to set forth specifically the
issue or issues under appellate consideration and its
decision must also include separately stated findings of fact
and conclusions of law on all material issues of fact and law
presented on the record, and the reasons or bases for those
findings and conclusions. 38 U.S.C.A
§ 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited
statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321,
328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57
(1990) (The Board's statement of reasons and bases for its
findings and conclusions on all material facts and law
presented on the record must be sufficient to enable the
claimant to understand the precise basis for the Board's
decision, as well as to facilitate review of the decision by
courts of competent appellate jurisdiction. The Board must
also consider and discuss all applicable statutory and
regulatory law, as well as the controlling decisions of the
appellate courts).
New And Material Evidence
Although the Veteran contends that he has disabilities of the
right shoulder, back, eyes, and kidney due to service, the
pertinent evidence does not show new and material evidence
that he has any of these disabilities due to service to
reopen any of the claims.
In general, unappealed rating decisions are final. See 38
U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Additionally, Board
decisions are final. See 38 U.S.C.A. § 7104; 38 C.F.R.
§ 20.1100. A final decision cannot be reopened unless new
and material evidence is presented. Pursuant to
38 U.S.C.A. § 5108, VA must reopen a finally disallowed
claim when "new and material" evidence is presented or
secured with respect to that claim.
The Board notes that there has been a regulatory change
with respect to new and material evidence, which applies
prospectively to all claims made on or after August 29,
2001. See 38 C.F.R. § 3.156(a) (2002). Because the
Veteran filed his request to reopen his claims in October
2001, the current version of the law is applicable in this
case.
"If new and material evidence is presented or secured
with respect to a claim that has been disallowed, [VA]
shall reopen the claim and review the former disposition
of the claim." See Thompson v. Derwinski, 1 Vet. App.
251, 253 (1991); see also Knightly v. Brown, 6 Vet. App.
200 (1994). "New" evidence means existing evidence not
previously submitted to agency decisionmakers.
"Material" evidence means existing evidence that, by
itself or when considered with previous evidence of
record, relates to an unsubstantiated fact necessary to
substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. Id.
In determining whether evidence is new and material, the
"credibility of the evidence is to be presumed." Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
When a claim to reopen is presented under section 5108, VA
must first determine whether the evidence presented or
secured since the last final disallowance of the claim is new
and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
In order for the Veteran's claim to be reopened, new and
material evidence must be submitted. See 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156. There must be new and material evidence
as to any aspect of the Veteran's claim that was lacking at
the time of the last final denial in order to reopen the
claim. See Evans v. Brown, 9 Vet. App. 273 (1996).
Consequently, there would need to be evidence that the
Veteran currently has each of the issues on appeal due to an
event or incident of his period of active service.
The issue of service connection for an eye condition was
denied by an unappealed rating decision in June 1959 because
it was considered an acute and transitory condition without
sequelae; this denial was confirmed by unappealed rating
decision in November 1966 because the disorder was not
considered related to service.
The issues of service connection for a right shoulder
disability and a kidney disability were denied by an
unappealed rating decision in February 1960 because a right
shoulder disability was not shown to be due to service and
because there was no postservice residual of a kidney
disorder.
The issue of service connection for low back disability was
denied by an unappealed rating decision in November 1966
because the complaints in service were considered acute and
transitory and unrelated to any postservice low back problem;
the issue of whether new and material evidence had been
submitted to reopen a claim for service connection for low
back disability was denied by the Board in March 1992 because
no new and material evidence was shown.
The Veteran attempted to reopen his claims of service
connection for the disabilities at issue in October 2001.
The evidence on file at the time of the June 1959 RO
decision consisted of the Veteran's service treatment
records.
Evidence added to the file between June 1959 and February
1960 consisted of a December 1959 VA examination report.
Evidence added to the file between February 1960 and
November 1966 consists of a June 1966 private medical
report and a September 1966 VA examination report.
Evidence added to the file between November 1966 and March
1992 consists of private and VA medical records dated from
June 1959 to September 1990.
Evidence received since March 1992 consists of private and
VA treatment reports dated from April 1994 to April 2007,
April 2009 VA examination reports, and written statements
by and on behalf of the Veteran.
The Veteran's service treatment records reveal low back
complaints in March 1953 and June 1954. Mild conjunctivitis
was noted in June 1953, and chalazion of the right eyelid was
reported in November 1955. The Veteran had an abnormal
urinalysis in early December 1956, with repeat urinalyses
later in December 1956 being normal. The only relevant
abnormality reported on separation medical evaluation in
April 1957, which included a urinalysis, was a small
chalazion of the left upper eyelid.
When seen by VA in December 1959, the diagnoses were
bilateral chalazions, mild; no residuals of a kidney
infection; and arthralgia of the right shoulder.
The diagnoses on VA examinations in September 1966 were
chalazions, recurrent; and bilateral conjunctivitis,
chronic, mild; and lumbosacral strain, chronic, mild.
Private treatment records reveal that the Veteran incurred
abrasions and lumbar sprain in April 1973 when he fell at
work and hit his left ankle and leg and twisted his back.
The Veteran complained on VA examination in January 1974
of eye trouble and of pain in the shoulder and back. The
pertinent diagnosis was residuals of an industrial
accident in April 1973 with minimal lumbar strain.
Private treatment records for November 1984 reveal lumbar
disc syndrome.
The assessment on VA eye evaluation in October 2002 was
ocular hypertension vs. glaucoma suspect. The impressions
in February 2006 were glaucoma suspect, cataracts, and
pinguecula with dry eyes. Stage III chronic kidney
disease was noted in January 2007.
The Veteran underwent VA kidney, joint and eye evaluations
in April 2009; and it was noted that the claims file was
reviewed by each the examiners. Each examiner concluded
that it is less likely than not that the Veteran's kidney,
joint, and eye disorders are due to service.
The Veteran's kidney problem was considered due to
postservice hypertension. It was noted that the abnormal
urinalysis in service was transient, that there was no
medical history of recurrent UTI or pyelonephritis, and
that a nephrology consultation in May 2008 determined that
the Veteran's chronic kidney disease was due to
hypertension, which was not shown until a number of years
after service separation.
On joint evaluation, the examiner concluded that, due to
the lack of significant physical findings in service, lack
of evidence of a significant service injury, mild
degenerative changes on diagnostic studies, and lack of
lower extremity deformities, the Veteran's lumbar
spondylosis and right shoulder rotator cuff tendonosis
were considered current conditions most likely due to the
Veteran's genetic predisposition, his age, and his
postservice vocation as a construction worker.
The examiner concluded on VA eye examination in April 2009
that the Veteran's eye complaints in service were acute
and transitory without sequelae and that his current
Veteran's eye problems were due to age-related dryness of
the eyes. The examiner noted that there was no scarring
of the eyelid or lagophthalmos from previous chalazion and
that was no active conjunctivitis or permanent corneal
scarring related to previous conjunctivitis.
The Board has reviewed the evidence received into the
record since the November 1966 RO denial and finds that
new and material evidence has not been submitted
sufficient to reopen a claim for service connection for an
eye disorder, to include chalazion of the left eyelid and
conjunctivitis. New and material evidence has also not
been submitted since the February 1960 RO denial
sufficient to reopen claims for service connection for
disabilities of the right shoulder or the kidney. New and
material evidence has also not been submitted since the
March 1992 Board denial sufficient to reopen a claim for
service connection for a low back disability.
While the new evidence received since the most recent
denials of the issues on appeal shows various diagnoses
and symptoms, it is dated many years after service
discharge and does not include any medical nexus to
service. In fact, the new evidence includes medical nexus
opinions against the claims.
Thus, the additional evidence received since the most recent
final denials of the claims does not relate to the
unestablished fact necessary to substantiate the claim by
showing a link between a current diagnosis of any of the
disabilities at issue and service, nor does it raise a
reasonable possibility of substantiating any of the claims.
Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v.
Derwinski, 2 Vet. App. 51, 53 (1992). (Observing that
evidence of the claimant's current condition is not
generally relevant to the issue of service connection,
absent some competent linkage to military service).
Accordingly, the Board finds that the claims for service
connection for disabilities of the right shoulder, back,
eyes, and kidney are not reopened.
Service Connection
The Veteran seeks service connection for disabilities of the
left knee and the ankles, to include arthritis. Having
carefully considered these claims in light of the record and
the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claims and that
these appeals will be denied.
Service connection may be granted for disability or injury
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Moreover, in
the case of arthritis, service connection may be granted if
the disease is manifested to a compensable degree within one
year following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for disability shown
after service, when all of the evidence, including that
pertinent to service, shows that it was incurred in service.
38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303,
305 (1992).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
It is the Board's fundamental responsibility to evaluate the
probative value of all evidence. See Owens v. Brown, 7 Vet.
App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994).
In the evaluation of evidence, VA adjudicators may properly
consider internal inconsistency, facial plausibility and
consistency with other evidence submitted on behalf of the
veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995),
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see
Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997);
(Holding that the Board has the "authority to discount the
weight and probative value of evidence in light of its
inherent characteristics in its relationship to other items
of evidence.").
The Veteran's service treatment records reveal that he
complained of left ankle pain in June 1956; x-rays of the
ankle were considered normal. There were no other knee or
ankle problems in service and no musculoskeletal
complaints or findings on discharge medical examination in
April 1957.
Because the service treatment records were generated with a
view towards ascertaining the Veteran's then-state of
physical fitness, they are akin to statements of diagnosis
and treatment and are of increased probative value, with
regard to the time frame indicated. Rucker v. Brown, 10 Vet.
App. 67, 73 (1997) (Observing that although formal rules of
evidence do not apply before the Board, recourse to the
Federal Rules of Evidence may be appropriate if it assists in
the articulation of the reasons for the Board's decision);
see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed.
(1987), pp. 245-46 (many state jurisdictions, including the
federal judiciary and Federal Rule 803(4), expand the hearsay
exception for physical conditions to include statements of
past physical condition on the rational that statements made
to physicians for purposes of diagnosis and treatment are
exceptionally trustworthy since the declarant has a strong
motive to tell the truth in order to receive proper care).
Private treatment records reveal that the Veteran incurred
abrasions in April 1973 when he fell at work and hit his
left ankle and leg.
The Veteran complained on VA examination in January 1974
of pain in the shoulder, knees, and left ankle. The
diagnoses included hypertrophic arthritis of the knees and
ankles by x-ray. This initial postservice evidence of a
chronic knee or ankle disability is over 16 years after
service discharge. See Maxson v. Gober, 230 F.3d 1330
(Fed. Cir. 2000) (a lengthy period without complaint or
treatment is evidence that there has not been a continuity
of symptomatology, and weighs heavily against the claim).
Private treatment records for November 1984 reveal
degenerative arthritis of the left knee.
On VA joint evaluation in April 2009, the examiner
concluded that, due to the lack of significant physical
findings in service, lack of evidence of a significant
service injury, mild degenerative changes on diagnostic
studies, and lack of lower extremity deformities, the
Veteran's bilateral knee arthritis, bilateral tibial
tendonosis, and right shoulder rotator cuff tendonosis
were considered current conditions most likely due to the
Veteran's genetic predisposition, age, and postservice
vocation as a construction worker.
Because there is no evidence of a left knee disability, a
right ankle disability, or a left ankle disability, to
include arthritis, in service or for many years after service
discharge, and because there is no nexus opinion linking any
of these disorders to service, as the only nexus opinion on
file is against the claims, service connection for a left
knee disability, a right ankle disability, and a left ankle
disability, to include arthritis, is not warranted.
The Board has considered the written statements by and on
behalf of the Veteran in making the above decisions.
However, a layperson without the appropriate medical training
and expertise, such as the Veteran, is not competent to
render a probative opinion on a medical matter, such as
whether he has a current disability related to service. See
Bostain v. West, 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also
Routen v. Brown, 10 Vet. App. 183, 186 (1997).
As there is no competent medical evidence of record to
support the Veteran's claims for service connection for
disabilities of the left knee and ankles, to include
arthritis, the preponderance of the evidence is against these
claims and the doctrine of reasonable doubt is not for
application. See 38 U.S.C.A.§ 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49, 55-57 (1990).
ORDER
As new and material evidence sufficient to reopen the claim
of service connection for a right shoulder disability, to
include arthritis and arthralgia, has not been submitted, the
appeal is denied.
As new and material evidence sufficient to reopen the claim
of service connection for a back disorder, to include
arthritis, has not been submitted, the appeal is denied.
As new and material evidence sufficient to reopen the claim
of service connection for an eye disorder, to include
chalazion of the left eyelid and conjunctivitis, has not been
submitted, the appeal is denied.
As new and material evidence sufficient to reopen the claim
of service connection for a kidney condition has not been
submitted, the appeal is denied.
Service connection for left knee disability, to include
arthritis, is denied.
Service connection for right ankle disability, to include
arthritis, is denied.
Service connection for left ankle disability, to include
arthritis, is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs